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State of Gujarat and anr. Vs. Nathubhai Manilal Desai - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR265
AppellantState of Gujarat and anr.
RespondentNathubhai Manilal Desai
Cases ReferredIn Dnyandeo v. Shankarappa A.I.R.
Excerpt:
- - there was no provision in the act taking away the jurisdiction of the ordinary criminal courts which could try the offences under the indian penal code as well as the offence under other acts. 14. these material provisions of the criminal procedure code indicate that these section 28 and 29 read with section 5 of the criminal procedure code would govern every criminal proceeding, both as regard to tribunal by which the crime is to be tried as well as the procedure to be followed. that argument appears to be quite well founded......under such law, the jurisdiction of the ordinary criminal courts to try the offence under the code of criminal procedure is not excluded. in other words, the exclusion of jurisdiction of the court of general jurisdiction can be brought about by the setting up of the court of limited jurisdiction in respect of a limited field only if the vesting and the exercise of limited jurisdiction is clear and operative. we will have, therefore, to find out whether there are any provisions in the act which indicate that any such court of limited jurisdiction in respect of limited field has been set up and the jurisdiction of a court of general jurisdiction is excluded.15. in dnyandeo v. shankarappa a.i.r. 1960 bombay 523 kotwal j. as he then was had an occasion to consider whether the.....
Judgment:

J.M. Sheth, J.

1. This is a reference made under Section 438 of the Criminal Procedure Code by the learned Sessions Judge, Mehsana, in Criminal Revision Application No. 69 of 1969 filed by the State of Gujarat and one another against the opponent-accused, recommending that the order passed by the learned Judicial Magistrate, First Class, Visnagar, in Criminal Case No. 1311 of 1968, that he has no jurisdiction to try the offence punishable under Section 27 of the Industrial Disputes Act, 1947 (which will be hereinafter referred to as the Act), and the complaint be returned to the original complainant for presentation to a proper Court. This order is dated 30th September, 1969.

2. Being dissatisfied with that order, the State of Gujarat and the Assistant Commissioner of Labour, Ahmedabad filed the aforesaid revision petition in the Sessions Court at Mehsana.

3. The Assistant Commissioner of Labour filed a complaint against the opponent-accused for the offence punishable under Section 27 of the Act, in the Court of the Judicial Magistrate, First Class, Visnagar. The opponent-accused raised a preliminary objection that the trial Magistrate had no jurisdiction to hear such a complaint and try the accused for the offence in question. That argument was based on the ground that the word 'Court' was defined in Section 2(f) of the Act. The definition of 'Court' given in Clause (f) is:

'Court' means a Court of Inquiry constituted under this Act.

The offence in question was an offence punishable under Section 27 of the Act. It was not an offence punishable under the provisions of the Indian Penal Code. It was, therefore, contended that wherever the word 'Court' appears in the Act, it has to be given the same meaning as given in the definition clause.

4. The learned Magistrate accepted this contention. According to his opinion, the Court must be a Court constituted under the Act and no other Court. Hence, the Government should have issued a notification that all the Courts of First Class Magistrate or a particular Court of First Class Magistrate in a particular district or at least in this Mehsana District, shall be considered as a 'Court' under this Act to try the offence punishable under this Act. No such notification has been issued, empowering the judicial Magistrate, First Class at Visnagar to try such offences. He had, therefore, no jurisdiction to try the offence in question. In that view of the matter, he passed the impugned order.

5. The learned Sessions Judge has referred to the scheme of the Act and laid emphasis on the position that this definition of the word 'Court' given in Clause (f) of Section 2 of the Act has to have that meaning only if there is nothing repugnant in the subject or context. Looking to the various provisions of the Act, it was abundantly clear that the word 'Court' used in Section 34 of the Act had a different meaning. There was no provision in the Act taking away the jurisdiction of the ordinary criminal Courts which could try the offences under the Indian Penal Code as well as the offence under other Acts. The only limitation placed by the provisions of Section 34 was that the Court trying such offences under the Act should not be inferior to that of a Presidency Magistrate or a Magistrate of the First Class. He has, therefore, made the aforesaid recommendation.

6. Mr. Zaveri, appearing for the opponent-accused, supported the order passed by the trying Magistrate. Mr. Chhaya appearing for the State urged that the reference should be accepted.

7. On referring to the relevant sections of the Act and Certain provisions of the Criminal Procedure Code to which I will make reference at an appropriate stage, it is abundantly clear that the jurisdiction of the ordinary criminal Courts for trying such offences under the Act is not taken away by any express provision or by necessary implication. The meaning of the word 'Court' given in Clause (f) of Section 2 of the Act has to be given that meaning only if there is nothing repugnant in the subject or context.

8. Mr. Zaveri appearing for the accused-opponent has laid considerable emphasis on the proposition that when the statute itself has given a meaning of a particular word, that meaning should be invariably given to that word wherever it appears in the Act. He invited my attention to the statement made by learned author Maxwell in his book 'the Interpretation of Statutes,' 12th Edition, at page 270 under the caption-Construction Imposed on Statute-Definition sections. That statement reads:

It is common for a statute to contain a provision that certain words and phrases shall, when used in the statute, bear particular meanings. Sometimes, it is provided that word shall 'mean' what the definition section says it shall mean: in this case, the word is restricted to the scope indicated in the definition section.

In the instant case, the definition of the word 'Court' has been given 'Court' means a Court of Inquiry. That meaning is no doubt to be given unless there is anything repugnant in the subject or context.

9. In B. Nana Rao v. M.U. Arunachalam Chettiar A.I.R. 1940 Madras 385, a Full Bench of the Madras High Court, at page 390, has observed:

It is unnecessary under the present Code in view of the extended meaning given by the Explanation to Claims enforceable under an attachment' to consider whether a claim for retable distribution can strictly be regarded as a claim truly enforceable under the attachment. The Statute has said so and there is an end of the matter. It is not for the Court to ignore a statutory definition and proceed to try and extract the true meaning of an expression independently of it.

There could not be any quarrel with the proposition enunciated by the Full Bench of the Madras High Court in this behalf.

10. In City Municipality v. Mahado Seetha Ram : AIR1967AP363 , a single Judge of the Andhra Pradesh High Court has observed:

It must be remembered that as a part of its legislative function a Legislature may enact law and define its meaning. Where the Legislature defines the meaning of the words used, it expresses most authoritatively its intent and its definition and construction is binding on the Court. Such internal legislative construction is of the highest value and must necessarily prevail over any other extrinsic aids to construction. In so far as the Hydrabad Municipal Corporation Act is concerned, the word 'food' is denned in the following way in Section 2(20)

11. In Hariprasad v. A.D. Divelkar A.I.R. 1957 Supreme Court 121 at page 126, the Supreme Court, after referring to the definition of the word 'retrenchment' in Clause (oo) of Section 2 of the Industrial Disputes Act,, has observed;

There is no doubt that when the Act itself provides a dictionary for the words used, we must look into that dictionary first for an interpretation of the words used in the statute. We are not concerned with any presumed intention of the Legislature; our task is to get at the intention as expressed in the statute Therefore, we propose first to examine the language of the definition and see if the ordinary, accepted notion of retrenchment fits in, squarely and fairly, with the language used. What is the ordinary, accepted notion of the retrenchment in an industry?

It is true that when the Legislature has given a meaning to the word used by it in that statute, that meaning has to be given ordinarily to that word unless we are able to find anything repugnant in the subject or context as the definition given has been made expressly subject to it in the definition section.

12. Before I refer to several sections of the Act, which unmistakably point to the conclusion that the jurisdiction of ordinary Courts is not barred and the functions assigned to a Court of Inquiry are quite distinct and the Court of Inquiry is not assigned the function of trying an offence punishable under the Act, I will first refer to the relevant provisions of the Criminal Procedure Code, 1898.

13. Section 5 and particularity Sub-section (2) of it is very material for our purposes. That section reads:

(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise deal with such offences.

Section 28 of the Criminal Procedure Code reads:

Subject to other provisions of this Code, any offence under the Indian Penal Code may be tried-

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.

That section lays down as to the Courts that would try particular offences under the Penal Code. Section 29 of the Criminal Procedure Code makes provision for trial of offences under other laws. It reads:

Subject to the other provisions of this Code any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.

(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable.

For the application of Sub-section (1) of Section 29 it must be shown that any offence under any other law is to be tried by a particular 'Court' specified in that Act. If there is no such 'Court' mentioned, which would try an offence punishable under that Act, the provisions of Sub-section (2) of Section 29 would be attracted.

14. These material provisions of the Criminal Procedure Code indicate that these Section 28 and 29 read with Section 5 of the Criminal Procedure Code would govern every criminal proceeding, both as regard to tribunal by which the crime is to be tried as well as the procedure to be followed. The provisions of the Criminal Procedure Code are no doubt subject to provisions of special law but unless the special law expressly or impliedly provides that certain offences shall be tried exclusively by the Court constituted under such law, the jurisdiction of the ordinary Criminal Courts to try the offence under the Code of Criminal Procedure is not excluded. In other words, the exclusion of jurisdiction of the Court of general jurisdiction can be brought about by the setting up of the Court of limited jurisdiction in respect of a limited field only if the vesting and the exercise of limited jurisdiction is clear and operative. We will have, therefore, to find out whether there are any provisions in the Act which indicate that any such Court of limited jurisdiction in respect of limited field has been set up and the jurisdiction of a Court of general jurisdiction is excluded.

15. In Dnyandeo v. Shankarappa A.I.R. 1960 Bombay 523 Kotwal J. as he then was had an occasion to consider whether the jurisdiction or ordinary criminal Courts of the land to try an offence under Section 47 of the C.P. and Berar Industrial Disputes Settlement Act (23 of 1947) for making an illegal change was barred by Section 41 of that Act. At page 525, he has made the following pertinent observaitions with which I am in respectful agreement:

This is a criminal case in which the applicants are charged with an offence under Section 47 of the Act. Section 5 of the Cr.P.C. and especially Sub-section (2) thereof gives plenary jurisdiction to the ordinary Criminal Courts in the matter of the trial of these offences Section 5(2) of the Code is nothing more than a statutory recognition of a cardinal rule of construction of statutes that the Courts vested with general jurisdiction to try all offences cannot have their jurisdiction ousted except by the most clear and unambiguous words or by necessary implication. In England the rule is confined in its applicability to the superior Courts of law, but in India Section 5 applies the rule to all Criminal Courts. Where however a statute creates a new offence, and simultaneously a special jurisdiction out of the ordinary course is conferred upon special Courts or Tribunal then it follows by implication that those are the only Courts or Tribunals which may try the offence. But in such cases there is really no ouster of the jurisdiction of the ordinary Courts for they never had any.

At page 526, it is observed:

Section 5(2) of the Criminal Procedure Code makes provision for the trial of offences under laws other than the Indian Penal Code and it provides that all offences under such laws shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, i.e., the provisions of the Code of Criminal Procedure. The provisions of the section are plenary and it seems to me that if any person accused of an offence intends to show that the Courts established under the Code have no jurisdiction, it is for him to establish that some other Court specially empowered has jurisdiction. This cannot be established except by express words or necessary inference from the provisions of any other law. There is no such provision to be found in the Act with which I am concerned, but on the other hand, there is a clear express provision to the contrary in Section 57.

In my opinion, the ratio laid down in this decision is quite correct.

16. Keeping the aforesaid principles in mind, I will now refer to various sections of the Act and try to ascertain whether the word 'Court' wherever used in this Act was intended to be given the same meaning as given in the definition clause or it had to be given a different meaning as there was something repugnant in the subject or context.

17. 'Court' is defined in Section 2(f) of the Act. It reads:

'Court' means a Court of Inquiry constituted under this Act.

Chapter II deals with 'Authorities under this Act'. One of the authorities contemplated is the 'Court of Inquiry' Section 6 deals with it. The material part of it reads;

6(1) The appropriate Government may, as occasion arises by notification in the official Gazette, constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute.

(2) A Court may consist of one independent person or of such number of independent persons as the appropriate Government may think fit and where a Court consists, of two or more members, one of them shall be appointed as the Chairman.

(3) A Court, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number;

Provided that, if the appropriate Government notifies the Court that the services of the chairman have ceased to be available, the Court shall not act until a new chairman has been appointed.

This section empowers the Government to constitute a Court of inquiry for discharging the functions referred to in Sub-section (1). Sub-section (2) of it deals with constitutions of a Court of Inquiry.

18. Section 7 of the Act deals with 'Labour Courts.' Section 7A deals with 'Tribunals'. Section 7B deals with 'National Tribunals'.

19. It thus appears that this Chapter II deals with Works Committee, Conciliation Officers, Boards of Conciliation, Courts of Inquiry, Labour Courts, Tribunals and National Tribunals.

20. Chapter III deals with Reference of Disputes to Boards, Courts or Tribunals. Clause (b) of Sub-section (1) of Section 10, which is material for our purposes, reads:

(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing- (b) refer any matter appearing to be connected with or relevant to the dispute to a Court of inquiry.

21. Chapter IV deals with Procedure, Powers and Duties of Authorities. It is significant to note that even in this chapter which deals with Procedure, Powers and Duties of Authorities, it is no where stated that a Court, i.e., a Court of Inquiry, has been assigned the function of trying an offence punishable under the Act. If the legislature intended that such offences which are punishable under this Act were to be tried by such Courts of Inquiry and the word 'Court' was to be given the same meaning as in the definition Clause 2(f) anywhere and everywhere in the Act, the Legislature would have mentioned in this Chapter IV that such a Court of Inquiry has to try the offences made punishable under the Act.

22. Sub-section (1) of Section 11 reads;

(1) Subject to any rules that may be made in this behalf an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal, shall follow such procedure as the arbitrator or other authority concerned may think fit.

Sub-section (3) of it reads:

Every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), when trying a suit in respect of the following matters, namely:

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) issuing commissions for the examination of witnesses;

(d) in respect of such other matters as may be prescribed;

and every inquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaning of sees. 193 and 228 of the Indian Penal Code (XLV of I960).

Sub-section (6) of it reads:

All conciliation officers, members of a Board or Court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

23. Section 14 of the Act lays down duties of Court of Inquiry. It reads:

A court shall inquire into the matters referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry.

It thus restricts the functions to be performed by a Court of Inquiry to inquire into the matters referred to it has to report thereon to the appropriate Government within the specified period.

24. Section 16 deals with the form of report or award to be made by a Court or by a Board.

25. Section 21 reads:

There shall not be included in any report or award under this Act any information obtained by a conciliation officer, Board, Court, Labour Court, Tribunal, National Tribunal or an arbitrator in the course of any investigation or inquiry as to a trade union or as to any individual business

All these provisions which are contained in Chapter IV which deals with Procedure, Powers and Duties of Authorities, amongst which Court of Inquiry is included, militate against the argument advanced by Mr. Zaveri that Court of Inquiry is a Court which has to try the offence in question.

26. Chapter VI deals with 'Penalties'. It lays down as to what acts would by punishable and it provides punishment for the offences created under the Act. Section 27 which is material for our purposes, reads:

Any person who instigates or incites others to take part in, or otherwise acts in furtherance of, a strike or lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.

It, therefore, indicates that it provides penalty for instigation, etc.

27. Section 29 of the Act provides penalty for breach of settlement or award. Section 30 provides penalty for disclosing confidential information, and Section 31 provides penalty for other offences.

28. Chapter VII deals with 'miscellaneous' topics. Section 34 which falls in that chapter, deals with cognizance of offences. It is, therefore, evident that it is that section which lays down as to which Court would take cognizance of the offences created under the Act. It reads:

(1) No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government.

(2) No Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act.

Mr. Chhaya for the State, urged that the language of this section shows that it is negative in content and positive in its import. That argument appears to be quite well founded. Sub-section (i) of Section 34 enjoins the Court not to take cognizance of any offence punishable under the Act or abetment of any offence, except on a complaint made by or under the authority of the appropriate Government. Ordinarily, criminal prosecution can be launched by any person. This Sub-section (i) restricts it.

29. Sub-section (2) of it puts further restriction by stating that any offence punishable under the Act shall not be tried by any Court which is inferior to that of a Presidency Magistrate or a Magistrate of the first Class. It could not be said by any stretch of imagination that the Court of Inquiry was either contemplated to be inferior or superior to that of a Presidency Magistrate or a Magistrate of the first class. In view of the clear provisions of Section 5 and Section 29 of the Criminal Procedure Code, if the legislature intended to bar the jurisdiction of ordinary Criminal Courts for trying the offences made punishable under this Act, the legislature ought to have mentioned about it in clear terms in this Act. There is no such express provision. It could not even be deduced by necessary implication. We cannot, therefore, give the same meaning to the word 'Court' used in Section 34 of the Act as that in the definition Clause (f) of Section 2 of the Act. We could give the same meaning if there is no repugnancy in the subject or context. There is such repugnancy in the subject or context. What the legislature intended was that an offence created under this Act and made punishable under this Act will not be tried by any Court which is inferior is that of a Presidency Magistrate or a Magistrate of the first Class. Furthermore, that Court could not take cognizance of such an offence unless there is a complaint made by or under the authority of the appropriate Government before it.

29.1. In this view of the matter, it is evident that the order passed by the learned Judicial Magistrate, First Class, Visnagar, is erroneous and cannot be sustained in law. The recommendation made by the learned Sessions Judge must be accepted.

30. Reference is accepted. The order passed by the learned Judicial Magistrate, First Class, Visnagar, dated 30th September, 1969 that he has no jurisdiction to try the offence in question and the complaint be returned to the original complainant for presentation to the proper Court is set aside and he is directed to proceed further with the case in accordance with law. Rule is made absolute.


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